Kentucky Farm Bureau Mut. Ins. Co. v. Miles

• Decision Date: 07 May 1954
• Citation: 267 S.W.2d 928
• Parties: KENTUCKY FARM BUREAU MUT. INS. CO. v. MILES.
• Court: United States State Supreme Court — District of Kentucky

Page 928

267 S.W.2d 928

KENTUCKY FARM BUREAU MUT. INS. CO. v. MILES.

Court of Appeals of Kentucky.

May 7, 1954.

Harlan Heilman, Carrollton, for appellant.

William G. Reed, Carrollton, for appellee.

STEWART, Justice.

The question raised on this appeal is whether the breach by the insured of certain conditions subsequent contained in an automobile liability policy may be relied on as a defense in an action brought by the injured person against the insurer.

The facts, dweveloped solely by the pleadings, disclose that on February 27, 1952, appellee, Raleigh Miles, sued Luther Perry to recover alleged damages of $750 arising out of a collision between automobiles owned by appellee and by Perry. The latter did not appear and defend the action, so that a judgment pro confesso was entered May 5, 1952. Thereafter an execution issued and was levied on personal property which, when sold, partly satisfied the judgment, leaving a balance due of $684.25.

Before the collision Perry had procured an automobile liability policy from appellant, Kentucky Farm Bureau Mutual Insurance Company, in which it agreed to indemnify the insured against loss or damage up to certain limits which might result to persons or property from the operation of Perry's automobile.

In this action appellee sought below to recover from appellant under the coverage of this policy his judgment debt against Perry. Appellant's answer alleged Perry had breached certain conditions subsequent contained in his policy, first, by failing to give written notice of the accident to appellant as soon as practicable; secondly, by failing to notify appellant at any time of the suit instituted by appellee against him; and lastly, by failing to co-operate with appellant by appearing in court and defending the action, with the result that a judgment pro confesso was entered against the insured. It was further pleaded that the violation of each of these conditions was a material breach and that by reason thereof appellant was relieved of any liability under the insurance policy.

In the answer it was also averred that appellant had on April 7, 1952, as required by KRS 187.330(4) of KRS Chapter 187, known as the 'Financial Responsibility Law,' issued Form SR-21 to the Department of Revenue at Frankfort showing that an automobile liability policy had been executed and delivered to Perry prior to the date of the accident and which was in effect at that time, but appellant denied that it had, and alleged that it had never, issued Form SR-22 to the Department, as defined by KRS 187.290(11) and mentioned in other sections of the Act. Form SR-22 covers a case where a policy has been furnished within the purview of the Act as proof of ability to respond in damages.

A demurrer, filed to the answer, was sustained by the lower court and, appellant refusing to plead further, the court thereupon dismissed the answer and awarded judgment for the foregoing amount in favor of appellee. This motion for an appeal challenges the correctness of this ruling.

It is appellee's contention that all defenses as to liability under the policy, insofar as the insurer and the insured are concerned, cease when, as was done in this case, the insurer, in conformity with KRS 187.330(4) of the Financial Responsibility Law, filed Form SR-21 with the Department of Revenue at Frankfort. This was the statutory notice, as we have mentioned, that the policy was in effect at the time of the accident. Appellant maintains, on the other hand,...